NEW JERSEY LAWYER

DAILY BRIEFING      05/06/2005


News Briefs

COMMENT PERIOD SET ON RECORDING OF INTERROGATIONS
The New Jersey Supreme Court is accepting comments until July 1 on the recommendations of one of its committees that police be required to record interrogations of criminal suspects beginning when a Miranda warning is given. If the court adopts the recommendations, New Jersey will join the growing number of states with such a policy. The committee — which included judges, prosecutors, defense attorneys and police — was established after the court in State v. Cook last year said it wanted to study the idea. 5-5-05

SEVEN NEW JUDGES HEADED FOR CONFIRMATION VOTE
The full Senate is expected soon to confirm seven new Superior Court judges whose nominations breezed through the upper house’s Judiciary Committee Thursday. They are Ned M. Rosenberg of Fairfield’s Simon, Sarver & Rosenberg; Public Defenders Verna G. Leath and Torkwase Y. Sekou; Robert J. Brennan, a principal at Porzio, Bromberg & Newman in Morristown; Thomas L. Weisenbeck of Bressler Amery & Ross in Florham Park; Seton Hall Professor Robert E. McCarthy; and Colleen A. Maier, a Woodbury solo. 5-5-05

LAWYERS’ BANKRUPTCY FILING FEES ARE DISCHARGEABLE
In what may well have a chilling effect on bankruptcy law practices, the 6th U.S. Circuit Court of Appeals has upheld a U.S. Bankruptcy Court ruling that attorney fees incurred prior to the filing of a bankruptcy petition are dischargeable when the petition is approved. In Rittenhouse v. Eisen, a client agreed to pay her attorney $800 for preparing a Chapter 7 filing; a party that acquired the account receivable was denied payment. The appeals court noted that fees for pre-petition filings are not among the non-dischargeable items enumerated in the bankruptcy code, adding that its job “is to enforce the law Congress enacted, not to write a different one that judges think superior.” 5-5-05

ROLL THE VIDEO; IT’S CHIEF JUSTICE PORITZ
If you missed Supreme Court Chief Justice Deborah T. Poritz’s speech that vicinages had available to broadcast as part of their Law Day activities, you can still catch the tape or transcript on the Administrative Office of the Courts’ website, judiciary.state.nj.us. Viewing requires Windows Media Player software, available for free download when clicking on the website’s link to the videotape. Her speech hails the importance of the jury system. The video will be on the court site until the end of May. 5-5-05

JUDGE ADMITS USING LAWYER LOANS TO PAY GAMBLING DEBT
A former Kansas City municipal judge admitted taking more than $28,000 in loans from lawyers and a company that wrote appearance bonds so she could pay her gambling debts. Deborah A. Neal, who resigned her judgeship in 2004, pleaded guilty in U.S. District Court in Kansas City to mail fraud and failing to include the loans in required reports to the Missouri State Supreme Court. According to reports, she once sought a $5,000 loan from an attorney after acquitting him of violating a municipal ordinance, and for another lawyer, she dismissed 41 traffic citations without the prosecutor’s consent. 5-5-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, MAY 5, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, MAY 5, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, MAY 6, 2005.


APPROVED FOR PUBLICATION
PREMISES LIABILITY
OLIVO v. EXXON MOBIL CORP.
Appellate Division, A-4328-03T5, approved for publication May 5, 2005. (13 pages). Facts-on-Call Order No. 92443

A premises owner owes a duty of care to the wife of an asbestos worker where asbestos was used on the premises and where the premises owner knew that the worker could carry asbestos fibers home on his clothes, which could foreseeably sicken his wife.

LAND USE
INFINITY BROADCASTING CORP. v. NEW JERSEY MEADOWLANDS COMMISSION
Appellate Division, A-264-02T2, approved for publication May 5, 2005. (27 pages). Facts-on-Call Order No. 92442

Resolutions of the Meadowlands Commission that adopt amendments to a redevelopment agreement are quasi-legislative exercises that are not reviewable by the Appellate Division in the first instance, but they may be challenged by affected property owners in the Law Division in an action in lieu of prerogative writs.

LAND USE
JERSEY URBAN RENEWAL, LLC v. CITY OF ASBURY PARK
Appellate Division, A-5623-03T5, approved for publication May 5, 2005. (12 pages). Facts-on-Call Order No. 92444

The procedural requirement of the Asbury Park Waterfront Redevelopment Plan — which required the plaintiff to obtain both approvals from several municipal entities and subsequent-developer status under the Plan before submitting its renovation application for property located in the waterfront zone to the Planning Board — did not impermissibly intrude on the Planning Board’s statutory jurisdiction over site plans, and the plaintiff’s renovation was a “development” or “redevelopment” under the Plan. Potentially contrary dicta in Britwood Urban Renewal, LLC v. City of Asbury Park distinguished.

REAL PROPERTY
LABOV MECHANICAL, INC. v. EAST COAST POWER, L.L.C.
Appellate Division, A-1316-03T5, approved for publication May 5, 2005. (16 pages). Facts-on-Call Order No. 92445

In an action under the Construction Lien Law, N.J.S.A. 2A:44A-1 to -38, the respondent subcontractors, who were not fully paid by the bankrupt prime contractor, were entitled to summary judgment where the appellant owner’s efforts to offset the liquidated damages agreed to by the prime contractor from the lien fund were akin to the owners’ efforts to reduce lien funds by retainage in Legge Indus. v. Joseph Kushner Hebrew Academy and in AEG Holdings, L.L.C. v. Tri-Gem’s Builders, Inc. Distinguishing Craft v. Stevenson Lumber Yard, Inc.

NOT APPROVED FOR PUBLICATION
TORT CLAIMS ACT
BRIGHT v. ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL
Appellate Division, A-6283-03T1, May 5, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 17923

Denial of the plaintiff’s motion for reconsideration of orders granting summary judgment for the defendant doctor, barring her from filing a late notice of claim in accordance with N.J.S.A. 59:8-9, and denying her cross-motion to file an amended late notice of claim reversed in a medical malpractice action; the Appellate Division did not agree with the trial court’s conclusion that knowledge of the defendant’s status as a public employee should be imputed to the plaintiff; although she knew in October 2003 that the defendant had performed the surgery on the decedent, the plaintiff was unaware of the defendant’s employment with the University of Medicine and Dentistry of New Jersey before the 90-day deadline expired on January 18, 2004; the plaintiff had sought leave to file a late notice of claim within a reasonable time after the 90 days had expired, and there was no “substantial prejudice” to the defendant.

SANCTIONS
ROSENBLUM v. BOROUGH OF CLOSTER
Appellate Division, A-5641-03T2, May 5, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17924

Orders (1) that denied the plaintiff’s motion to amend his complaint to reinstate a count that alleged that the defendant temple had failed to install required perimeter marker posts and (2) that required the plaintiff to pay the temple $4,871.51 in sanctions affirmed; the plaintiff had an “extensive history” of frivolous litigation, and the assignment judge exercised her authority to review the plaintiff’s complaints before they were filed and prevented the filing of the marker-posts count; the assignment judge granted the temple’s motion for sanctions after the plaintiff moved to vacate the order that denied the reinstatement motion; the plaintiff’s arguments that the assignment judge erred by considering the marker-post issue moot, that she “compromised the integrity of the judicial system” by failing to allow his amendment, and that the imposition of sanctions pursuant to Rule 1:4-8 violated his constitutional due process rights were “without merit.”

CIVIL PROCEDURE
TRIFFIN v. HORIZON PERSONNEL, INC.
Appellate Division, A-4223-03T2, May 5, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17922

Special Civil Part order denying the plaintiff’s motion to enforce a settlement through the entry of a turnover order affirmed; the plaintiff and the defendant settled their dispute and agreed to execute a turnover consent order; the Special Civil Part denied the plaintiff’s motion because the consent order he submitted contained the plaintiff’s certification “which this Court does not adopt as its findings”; the plaintiff mistakenly believed that the Special Civil Part was required to execute the consent order; the Special Civil Part appropriately exercised its discretion by refusing to execute an order that included the plaintiff’s representations of fact, particularly because a standard form of order that the plaintiff could have submitted to obtain relief was readily available.

DRUNK DRIVING
STATE v. YARD
Appellate Division, A-5644-03T1, May 5, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17921

Municipal Court judgment sentencing the defendant as a “third offender” for driving while intoxicated affirmed; while N.J.S.A. 39:4-50(a)(3) allows a second- or third-time offender a “stepped down” sentence, this applies only if the second or third DWI offense occurs more than 10 years after the previous offense; although the record did not specify the date of the defendant’s second DWI offense, his conviction for that offense was in March 2003, and the third offense, in October 2003, “plainly could not have occurred more than ten years after the second offense”; when a defendant has been granted the leniency set forth in the statute, in the absence of another 10-year gap he has “no vested right to continued ‘stepped down’ status for subsequent offenses.”


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Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)


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